State Central Authority and Jazeer (No 2)

[2015] FamCA 312

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & JAZEER (NO 2) [2015] FamCA 312

FAMILY LAW – Practice and procedure — interim extension of time in which mother can file an application to re-open her case

APPLICANT: State Central Authority

RESPONDENT: Ms Jazeer

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms K Hams

FILE NUMBER: MLC 2384 of 2014

DATE DELIVERED: 26 March 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 26 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Porrit

SOLICITOR FOR THE APPLICANT: Department of Human Services, Legal Services Branch

COUNSEL FOR THE RESPONDENT: Ms Harris (amicus curiae)

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Glezer Lanteri & Associates

Orders

IT IS ORDERED THAT:

1.These proceedings be adjourned for mention before me on 17 April 2015 at 9.00 am.

2.The time for compliance by the mother with paragraph 1 of the Order made on 25 February 2015 be extended to 13 April 2015 at 12.00 noon.

3.In the event that the mother will contend in the context of Regulation 16(3)(b) of the Regulations that her mental health precludes or compromises her ability to prosecute or participate in the parenting proceedings in New Zealand, the mother file and serve any expert evidence upon which she relies in respect of that contention as part of the documentation  filed pursuant to paragraph 2 hereof.

4.There be liberty to the parties to seek an administrative adjournment by consent.

IT IS FURTHER ORDERED BY CONSENT THAT:

5.The mother file and serve documentation in the New Zealand proceedings contemporaneously with filing documents in this Court AND IT IS NOTED that the mother’s agreement to this order was a condition to the Court granting an extension of time to file documents in these Hague return proceedings.

IT IS FURTHER ORDERED THAT:

6.My reasons for decision be transcribed and when settled be made available to the parties and a copy be sent to Judge McHardy in New Zealand.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Jazeer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2384 of 2014

State Central Authority

Applicant

And

Ms Jazeer

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

EX TEMPORE

1. This matter comes back before me for mention in circumstances where the mother had the opportunity up until yesterday at 12 noon to file and serve any application to re-open her case, together with any evidence in support of that application.  She has not yet done so.

2. The case is proceedings brought by the State Central Authority for the return of B, born in 2007, to New Zealand. The mother seeks to re-open the evidence in support of that case to rely on reg 16(3)(b) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth). That is, that returning the child to New Zealand would expose him to a grave risk of physical or emotional harm, or otherwise place him in an intolerable situation.

3. The mother has had a number of indulgences designed to give her an opportunity to put material before this Court on the issue of the applicability of an exception to return.  She has not availed herself of any of those opportunities.  There has always been the suggestion that the mother was suffering from mental health problems which compromised her ability to participate in these proceedings.  It has now been confirmed by Ms Harris of counsel, who appears on behalf of the mother today, pro bono, that the mother is undergoing a mental health treatment plan and has seen a psychologist on two occasions for treatment of what sounds like acute anxiety. 

4. In general terms, I understand the mother’s case to be that she has been unable to cope with behaviour by the father which, in broad terms, may be described as intimidatory behaviour by the father and also the Country G community in both Melbourne and New Zealand.  I say that I understand this to be her case in general terms because, of course, her case has not been articulated in any evidence or response currently before the Court.  

5. The State Central Authority has been sensitive to the mother’s plight in this proceeding and will give consideration to whether it will seek to have the mother examined by a single expert witness, or an expert appointed by the State Central Authority, in the event that the mother does seek to run the argument that I’ve described above.  It would be good to plan ahead for that contingency to avoid any further delay, because an appropriate clinician is not available.

6. I was not prepared to grant the further extension for the mother to file documents in these proceedings unless she also agreed to file documentation in the New Zealand proceedings.  The direct judicial communication between myself and Judge McHardy rested with his Honour confirming that the mother should file documentation in New Zealand as soon as possible.

7. In the event that the mother succeeded in resisting the return application here, the proceedings in New Zealand would be unnecessary.  However, as she has received so many indulgences from this Court, and indulgences from the courts in New Zealand, it seems to me only fair that she put her case properly in New Zealand at the same time as she is putting her case here in Australia. 

8. I am mindful that the content of the material to be filed in the New Zealand proceedings is unlikely to differ in very many respects from the material that the mother is going to file here.  So it is not an onerous condition but, in my view, it is a necessary condition.  For these reasons, I make the orders set out at the beginning of these reasons.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 26 March 2015.

Legal Associate:

Date:  30 March 2015